In re Morse CA4/1

Filed 2/16/22 In re Morse CA4/1
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D077483
In re WILLIAM JIM MORSE on
(Super. Ct. No. EMH-000347)
Habeas Corpus.

Petition for Writ of Habeas Corpus. Jeffrey Bruce Jones, Judge.
Petition granted.
Benjamin Salorio, Public Defender, Darren Bean, Deputy Public
Defender for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Joy Utomi, Deputy Attorneys General, for Real Party in Interest.
On February 20, 2020, the El Centro District Attorney filed a petition
to commit William Jim Morse as a sexually violent predator (SVP) under the

Sexually Violent Predators Act (Welf. & Inst. Code,1 § 6600 et seq.) (SVPA or
the Act). The petition was supported by the evaluations of psychologists

1 Statutory references are to the Welfare and Institutions Code unless
otherwise specified.
Erick Fox and G. Preston Sims, in which the doctors concluded that Morse
met the definition of a SVPA under the Act.
At the probable cause hearing, the People submitted two written
psychological evaluations of Morse as the only evidence supporting probable
cause. No live testimony was presented. Morse objected to the admission of
the two psychological evaluations on the grounds they contained case specific
hearsay that was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez), and the experts’ opinions lacked proper foundation because they
were based on inadmissible hearsay. The People countered that the
evaluations were admissible under Evidence Code sections 721, 801, and 802.
Although the court sustained Morse’s objection under Sanchez, it
determined sufficient evidence in the two reports was admissible, leading the
court to find there was probable cause that Morse is a person who meets the

criteria of a SVP.2
Morse then filed a writ asking the superior court to reverse its finding
under the SVPA that there is probable cause to believe he is likely to engage
in sexually violent predatory behavior without treatment or custody. He
argued that the court correctly found Sanchez applied at the probable cause
hearing, and, after sustaining his hearsay objection to the experts’
evaluations, there was insufficient evidence to support the court’s probable
cause finding. Morse also maintained that the People “waived” their right to
assert section 6602 is an implied exception to the hearsay rule by failing to
raise this specific ground at the hearing.

2 A “ ‘Sexually violent predator’ means a person who has been convicted
of a sexually violent offense against one or more victims and who has a
diagnosed mental disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in sexually
violent criminal behavior.” (§ 6600, subd. (a)(1).)

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 In our original opinion, we concluded the superior court erred in
sustaining Morse’s hearsay objection at the section 6602 hearing. We found
the SVPA as a whole, and section 6602 in particular, evince a legislative
intent to allow a court to consider hearsay in the experts’ evaluations when
making a probable cause determination. As such, we concluded there was
ample evidence in the record to support the court’s probable cause finding.
We therefore denied the writ petition.
Thereafter, the California Supreme Court granted Morse’s petition for
review and ultimately transferred the matter to this court with directions to
vacate our prior opinion and reconsider the case in light of Walker v. Superior
Court (2021) 12 Cal.5th 177 (Walker). Our previous opinion has been
vacated, and as we explain post, in light of Walker, we grant Morse’s petition
and remand this matter back to the superior court with instructions to vacate
its order finding probable cause under the SVPA and conduct a new probable
cause hearing consistent with this opinion. We offer no opinion as to the
result of that hearing but note that the court must follow Walker in
determining whether probable cause exists.
OVERVIEW
Morse’s challenge to the superior court’s finding of probable cause
under the SVPA focuses on the written evaluations prepared by Fox and
Sims. In connection with their evaluations, the doctors reviewed Morse’s
background, criminal, prison, and mental health records, and records of the
qualifying sexual offense. Morse refused to be interviewed by Fox. Thus, Fox
completed his evaluation by relying on about 39 sets of documents, which he
identified, including dates, in his evaluation.
Morse did agree to an interview with Sims, who also reviewed
voluminous records identified in his evaluation. The doctors in their

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evaluations concurred that Morse met the definition of a SVP as provided
under the Act.
Qualifying Sexually Violent Offense

As described in the doctors’ evaluations,3 Morse’s February 2012
Imperial County Probation Report (probation report) noted deputies, on
January 24, 2010, responded to a physical altercation in a trailer park where
Morse was then living. Deputies contacted Morse and discovered he had been

hiding in the bedroom closet of seven-year-old4 Jane Doe. Morse claimed
while hiding he heard Jane Doe’s 16-year-old cousin asking to be orally
copulated by Jane Doe and saw him exposing his penis to his cousin. Morse
further claimed he confronted the cousin and a fight ensued.
Deputies searched Morse’s RV positioned adjacent to the victim’s
residence. Inside, the RV deputies found “images of child erotica, notebooks
with handwritten text discussing child sex and an intention to engage in sex
with children, literature discussing sex with children in foreign countries,
and baby dolls with red paint on their vaginal areas.”
According to the probation report, deputies, on February 10, 2010,
interviewed Jane Doe’s mother. She disclosed she had met Morse about two
months earlier; he was the caretaker of the trailer park and an acquittance of
her boyfriend. She also disclosed Morse had given her daughter “underwear
and toys”; he had “frequently followed her daughter around”; and her
daughter had reported Morse “touched or tickled her in the underwear area.”

3 The documents relied on by the evaluators are not included in the
appellate record. We thus cite to the evaluations in summarizing the facts of
Morse’s qualifying sexual offense and the other information relied on by the
experts in determining Morse met the criteria of an SVP.

4 Fox in his report stated Jane Doe was seven years old, whereas Sims
stated she was six years of age.

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 On February 23, Jane Doe was taken to the Chadwick’s Children
Center for a forensic interview. The probation report notes the following
statements were then taken: “Jane Doe said she was watching Strawberry
Shortcake when the defendant entered her room. He sat next to her on the
bed and placed his hands on her upper/inner thigh. Jane Doe said she was
scared and told her mother. On a separate occasion, Jane Doe said she was
taking out the trash when the defendant began chasing after her. Jane Doe
said she was very scared. Jane Doe further said that the defendant had
given her a doll that had a hole on the ‘private parts’ area. On one occasion,
he kissed the victim’s doll on the vaginal area. The victim said the defendant
repeatedly attempted to take her to the beach and had given her underwear
and a Sea World towel. The victim lastly said that the defendant had
attempted to kiss her. Jane Doe reiterated that she was afraid and did not
like him at her house.”
Although charged with multiple counts, Morse pled guilty to a single
count of committing lewd acts upon Jane Doe, a child under the age of 14.
(Pen. Code, § 288, subd. (a).) The court sentenced Morse to 12 years in
prison.
Fox’s Evaluation
Fox opined that Morse’s conviction under Penal Code section 288,
subdivision (a) qualified as “sexually violent offense” under section 6600,

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subdivision (b).5 Fox also opined that Morse has a diagnosed mental disorder
that predisposes him to the commission of criminal sexual acts. (§ 6600,
subd. (a)(1).)
With respect to his latter finding, Fox reviewed Morse’s psychological
history. Fox noted there was limited information on this subject matter. Fox
cited to a Clearwater, Florida supplemental police report from 1995 in which
Morse had been arrested for kidnapping and false imprisonment of a nine-
year-old child. Subsequent to his arrest, Morse’s mother was interviewed by
an investigating officer. She stated Morse had a “long history of drug related
problems” that led her to “kick” Morse out of the house on several occasions.
Fox also addressed Morse’s educational, employment, relationship, and
psychosexual history, as set out in the probation report. This history shows
Morse completed the ninth grade; served in the United States Army for three

years;6 and had at least four children. Fox noted the probation report
provided some background information regarding Morse, including about his
father who died in combat while serving in the United States Army, and
about his mother, who died in 2010.
Regarding Morse’s psychosexual history, Fox noted there also was a
dearth of information on this subject matter, particularly as a result of

5 As relevant here, a “ ‘sexually violent offense’ means the following acts
when committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or threatening to
retaliate in the future against the victim or any other person, and that are
committed on, before, or after the effective date of this article and result in a
conviction or a finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section . . . 288 . . . of the
Penal Code . . . .” (§ 6600, subd. (b).)

6 Morse stated during his interview with Sims that he served one year in
the Army and then left because his mother had health problems.

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Morse’s refusal to submit to a clinical interview. Fox noted the probation
report provides evidence that in the qualifying crime Morse attempted to
“groom” Jane Doe; that Jane Doe’s mother was often intoxicated, making the
victim “particularly vulnerable”; and that the Facts of Offense Sheet dated
February 14, 2012 listed the titles of videos Morse had in his possession at
the time of the qualifying crime. These titles included: “ ‘6-9 years. Girls
Fuck. Little Cunts. Fucked by big daddy. Rape little girl.’ ‘5 mins. Russia.
7 yo Fucked by Daddy.’ ‘Hot little vaginas from Germany. 4-6 yrs—raped by
2 daddies.’ Thailand-Bankok babes—pretens 5 yrs, 6yrs. Hot 8 yrs old
getting pussy fucked by old dude.[ ] etc. . . .”
Fox described an incident from the probation report that took place
after Morse had been arrested for the qualifying crime. An undercover agent
from Immigration and Custom Enforcement was placed in Morse’s Imperial
County Jail cell because authorities were concerned by Morse’s “intent to
access child pornography and have sex with children in foreign countries.”
The agent befriended Morse; they had a number of conversations about child
pornography and sex with children; and Morse agreed to purchase child
pornography videos from the agent on Morse’s release.
After making bail, Morse went to the agent’s motel room to purchase
the videos. The probation report, relied on by Fox, noted a hidden camera
and microphone in the motel room recorded the following:
“ ‘. . . [T]he pornographic videos contained images of a “ten-year-old getting
fucked by a dog,” a five year-old “Brazilian bitch being raped by a man with a
cock the size of fuckin [sic] Great Dane” and a little girl getting her “cherry
popped.” [The undercover agent] said he would sell the videos to him for
$100. The defendant said $100 was a significant amount and that he needed
a preview before purchasing them. He then told [the undercover agent] he

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would purchase his toiletries from [a department store] in exchange for the
videos. On February 1, 2012, he eventually paid [the undercover agent] $50
for the videos.’
“The defendant made several alarming statements such as . . . ‘I fucked
my own mother,’ ‘My daughter sucked my dick when she was like eight years
old,’ and ‘I will protect fucking people that are like me. All my fucking life I
knew I wasn’t the only one, the only so-called fuckin molester or the only
fuckin pervert.’ The defendant added a pimp in Ciudad Juarez, Mexico had
given him a child and that children commonly went for $400. [The
undercover agent] suggested that they travel to Mexico to have sex with
children. Enthused by the idea, the defendant invited himself and began to
plan the trip. He said they needed to have a ‘business plan.’ The defendant
said he was seeking more than sex and wanted a ‘real relationship’ with a[n]
11 year-old. Once he would ‘fuck’ her, nobody could touch her, he said. The
defendant said he needed to give the children’s mother[ ] money to calm down
the children. Therefore, they drove to [a location] to access a [bank’s]
automatic [teller] machine; the defendant withdrew $800. Officers
subsequently arrested him in the parking lot.”
Fox noted Morse was accused of molesting another victim, who came
forward on April 8, 2010. Fox’s evaluation referenced an April 8 El Centro
Police Department Narrative regarding this incident, which was summarized
in the probation report. The probation report noted criminal charges from
this incident, involving a six-year-old girl in which Morse was accused of
molesting and grooming the victim, were dropped as part of Morse’s guilty
plea to the qualifying crime involving Jane Doe.

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 The probation report nonetheless provided details regarding this

separate incident.7 The victim reported to her father that Morse “touched
her vagina, that his penis entered her vagina[ ] and that it hurt her. The
victim confirmed it was Mr. Morse who molested her and remarked that he
bought her toys. An El Centro Police Department Investigation Report dated
5-9-11 also indicates the victim stated Mr. Morse placed his mouth on her
‘peepee’ for a long time while inside Mr. Morse’s recreational vehicle.”
Fox noted that while Morse was incarcerated in 2011 at the Imperial
County Regional Adult Detention Facility, deputies during a routine
inspection found papers in Morse’s cell that “contained writing and drawings
that appeared to be of female children in various states of undress and
provocative poses.” Fox reviewed the drawings and reported one of the
drawings “displays a female with her legs spread open and a caption of her
saying, ‘Fuck me hard daddy!’ Underneath the image is the quote, ‘Seems he
has a daughter that just loves to fuck.’ ” Other writings on the papers
included, “ ‘Little girls inside of blacked out minivans in Lost Angelles [sic]
Cal. Arcade Fun.’ ”
In 2012, while in prison for the qualifying crime, deputies discovered a
number of contraband pictures while searching Morse’s bed area. Fox noted
there were seven small pictures depicting “various dolls and very young girls
who looked between the ages of 4 and 7.”
Fox described an incident in 2015 when an inmate complained Morse
was creating “ ‘[d]isgusting drawings of children and cartoon characters
showing their private parts.’ ” The source of the report is not given by Fox.
Fox went on to note that shortly after the inmate complained, there was a

7 As discussed post, Sims questioned Morse about this incident during
the forensic interview.

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physical altercation between Morse and other inmates. Fox added, “I found
no other mention of the child sexual material but given the history of such, it
seems plausible Mr. Morse was creating it again.”
Fox also addressed an incident in February 2019 when Morse walked
across the prison yard “completely naked.” Fox did not provide a source of
this information. Fox in his evaluation noted Morse claimed to have done so
for attention because he was fearful as a result of being a convicted sex
offender.
Fox listed Morse’s adult criminal history, which is extensive dating
back to 1982, and includes Morse’s 1995 conviction in Florida for false
imprisonment of a nine-year-old child, as briefly noted ante. The criminal
history also includes a section on Morse’s “Institutional Behavior,” which
recounted more than 10 violations while Morse was incarcerated for the
qualifying crime, including the February 2019 incident when Morse walked
across the prison yard naked.
The evaluation also includes Morse’s substance abuse, medical, and
psychiatric history. Regarding the latter, among other details Fox stated, the
probation report noted Morse admitted to being diagnosed with schizophrenia
at the age of 10. According to Fox, Morse’s medical records, including an IEX
report dated March 4, 2019, “reveal Mr. Morse is diagnosed with a number of
mental disorders including Bipolar Disorder, Antisocial Personality Disorder,
and Pedophilic Disorder.”
When Fox briefly met with Morse and attempted to conduct a forensic
examination, Morse then was in custody in the Mental Health Crisis Bed
level of care, which Fox opined was “similar to an acute inpatient psychiatric
hospitalization.” Shortly thereafter, Morse was transferred to an

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“Intermediate Care Facility” because, Fox further opined, Morse needed a
“higher level of care . . . than that which the prison can provide.”
Fox reviewed Morse’s Clinical Summary and Case Formulation dated
August 21, 2019, which described Morse’s psychiatric treatment history, most
of which was from his incarceration for the qualifying offense. From this
information, and other records summarized ante, Fox concluded that Morse
“has not been stable psychiatrically for some time”; that he is “court ordered
to take psychiatric medication involuntarily which highlights his lack of
treatment compliance”; that Morse’s antipsychotic medication therefore was
being “administered intramuscularly”; and that he suffers from auditory
hallucinations and paranoid thoughts, as also documented in progress notes
from 2018 by the Mental Health Services Delivery System, where Morse
again admitted to being schizophrenic.
Based on his review of these extensive records, Fox opined under the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-
5), that Morse’s has the following diagnostic profile: “302.2 Pedophilic
Disorder, Non-Exclusive Type, Sexually Attracted to Females”; “305.00
Alcohol Use Disorder, Mild”; “305.20 Cannabis Use Disorder, Mild”; “305.60
Stimulant Use Disorder, Cocaine, Mild”; and “298.8, Other Specified
Schizophrenia Spectrum and Psychotic Disorder.”
Regarding his diagnosis of pedophilic disorder, Fox noted the DSM-5
lists the criteria of this disorder as follows: “A. Over a period of at least six
months, recurrent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child or children
(generally age 13 years or younger). [¶] B. The individual has acted on these
sexual urges, or the sexual urges or fantasies cause marked distress or

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interpersonal difficulty. [¶] C. The individual is at least age 16 years and at
least five years older than the child or children in Criterion A.”
Fox opined that Morse met the above criteria, noting his prepubescent
victims, including Jane Doe, were only six or seven years of age. Fox
continued, “The evidence shows he groomed each of these vulnerable children
and had written about his desire to have sex [with] children. Further
evidence of his sexual interest in children is noted by officers who confiscated
child pornography from his vehicle after his arrest in 2010. Then, after
detection for molesting the 7-year-old victim [Jane Doe], Mr. Morse
befriended a cellmate who he later purchased child pornography from. He
then made arrangements to have sex with children in Mexico. Mr. Morse
also disclosed he had forced his 8-year-old daughter to orally copulate him.
The cellmate was actually an undercover agent. Later in 2011, 2012, and
2015 while in custody, Mr. Morse was in possession of images and writings he
created regarding sexual interest in children. Consequently, the timeline for
the disorder is met. Mr. Morse has obviously acted upon his urges and the
age requirements are established. Mr. Morse’s incarceration has caused him
obvious marked distress and interpersonal difficulty. The criteria for
Pedophilic Disorder are met.” Fox then went on to address the remaining
disorders discussed ante.
Fox opined Morse suffers from a “diagnosed mental disorder” as defined

in subdivision (c)8 of section 6600, as Fox found there was a “direct nexus
between [Morse’s] pedophilic disorder and his lack of volitional control.” Fox
added: “First, despite detection and sanction, Mr. Morse immediately sought

8 “ ‘Diagnosed mental disorder’ includes a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the
person to the commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety of others.” (§ 6600, subd. (c).)

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out child pornography to replace what had been confiscated. He then made
plans and took steps to engage in sex with a child in Mexico. Thereafter,
while incarcerated, he created images and writings to support his deviant
sexual interests despite the fact that possession of such material imposed a
significant danger to his safety. It is therefore clear his behavior is not
deterred by actual consequences. In Mr. Morse’s case, he is also emotionally
impaired as a result of his pedophilic disorder. His statements and actions
establish that he fails to recognize the significant psychological consequences
to his victims.”
Fox further opined that without appropriate treatment and custody,
Morse was likely to engage in sexually violent criminal behavior as a result of
his mental disorder. In reaching this conclusion, Fox relied on the Static-
99R, scoring it “in the most conservative manner” by not including any
incident involving a stranger or any male victims. Fox found Morse was in
the above average risk category for being charged or convicted of another
sexual offense. Fox’s evaluation discussed at length absolute recidivism
rates, as well as the structured risk assessment known as the violence risk
scale—sexual offense version (VRS-SO), and a variety of dynamic factors
under this assessment tool.
Fox went through 17 different factors relative to the VRS-SO. He
found Morse’s overall lifestyle is characterized by sexual deviance, including
grooming at least two of his victims; possessing child pornography; discussing
his sexual history with children with an undercover agent; acquiring more
sexually deviant material from that agent; and making plans to travel abroad
to have sex with children. Fox also found that Morse in 2010 planned his
sexual crime, another factor, by grooming Jane Doe and the other young
victim.

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 Other factors present in the VRS-SO included Morse suffers from some
“cognitive distortions”; he “extensively or consistently” uses aggressive
behaviors “in interpersonal interactions”; he lacks community support if
released; if released, he will be at risk even on parole given his “thought
disorder, poor medication compliance, substance abuse history, and limited
resources”; he is unwilling to comply with community supervision, as he was
on such supervision when he sexually assaulted Jane Doe, purchased child
pornography, and made arrangements to have sex with children in Mexico;
and he exhibits deviant sexual preference, as he showed a consistent and
marked interest in children and was diagnosed with a paraphilia.
Fox found various case-specific factors also supported his conclusion
that if untreated, Morse was likely to engage in sexually violent criminal
behavior as a result of his mental disorder. Fox noted the depth and
persistence of Morse’s paraphilic disorder was “quite significant,” as Morse’s
victims were vulnerable and he was willing to travel outside of the country to
serve his sexual deviance. Fox thus found these factors set Morse apart
“from the typical, average, or routine pedophile” who, according to Fox, tend
not recidivate, unlike Morse who sought to do so while out on bail for the
qualifying crime.
Fox next reviewed various factors that may mitigate the risk of sexual
recidivism by Morse. Fox found none applied.
Fox also concluded Morse’s qualifying crime was “predatory,” as defined

in section (e)9 of section 6600. Fox noted Jane Doe was at most a casual
acquaintance, and Morse only briefly knew his other victim. Fox further

9 “ ‘Predatory’ means an act is directed toward a stranger, a person of
casual acquaintance with whom no substantial relationship exists, or an
individual with whom a relationship has been established or promoted for the
primary purpose of victimization.” (§ 6600, subd. (e).)

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noted both relationships were promoted for the primary purpose of sexual
victimization. As such, he concluded any future sexual offenses committed by
Morse were likely to be predatory in nature.
In addition, Fox discussed alternate sex offender treatment programs
available to Morse. After assessing various factors, Fox concluded that if
paroled, community-based voluntary treatment for Morse would be
“insufficient.” Fox therefore concluded Morse met the criteria of an SVP
under section 6600, subdivision (a)(1).
Sims’s Evaluation
Sims interviewed Morse for one hour and 20 minutes in connection
with his November 5, 2019 evaluation. Sims also reviewed 41 sets of
documents from the Department of State Hospitals (DSH); myriad rules
violation reports from Morse’s medical file generated by the R.J. Donovan
Correction Facility; and Morse’s mental health documents dated May 3 to
October 30, 2019. Sims concurred with Fox that Morse’s 2012 conviction
involving Jane Doe, case No. JCF25010, was a “sexually violent offense”
under section 6600, subdivision (b). Sims noted the case information showed
Morse had been charged with five counts and he had pleaded guilty to
count 1, with the remaining counts being dismissed under the plea.
Sims’s evaluation, like Fox’s, relied extensively on Morse’s
February 2012 probation report. Sims’s factual summary of the qualifying
sexual offense is thus similar to Fox’s summary, described ante. Sims’s
evaluation, however, included additional information as follows: “On
February 14, 2012, the undersigned (probation officer) interviewed the
defendant at Imperial County Jail. Upon introducing myself, the defendant
immediately asserted, ‘I didn’t do these crimes’ and that he had pled to the
instant offense since he had to two prior strikes. He added, ‘I got railroaded

15
into taking a guilty plea.’ The defendant said the incident report had
numerous inconsistencies and he referred to police officers as ‘dirty mother
fuckers.’ When asked to explain his relationship to the victim, he asked
which one of the two victims. The defendant said he was a friend to both
victims. When referring to Jane Doe, he said he cared for her when the
mother was sick drunk [sic]. The defendant said he often had dinner at Jane
Doe’s house and would have a few beers with her mother. He said he was
living with the other victim’s mother, who was pregnant, and that he had
helped care for her children. Later, he was accused of molesting her seven-
year-old daughter. He denied engaging in sexual contact with either victim.”
Sims during the clinical interview asked Morse about the incident
involving Jane Doe. Morse responded he did not remember. When Sims
reminded Morse he was sentenced to 12 years in state prison for this offense,
Morse stated the incident was “ ‘erroneous,’ ” and added he had “[o]ral
copulation with a Child Under 13 years.”
During the interview, Morse also was asked about the incident
involving the six-year-old girl, in which charges were brought then dropped
in return for his guilty plea to the qualifying offense. Morse responded,
“I was intoxicated and high on medication.” When Sims questioned Morse
about what effect the sex offense may have had on the little girl, Morse
replied, “I doubt it. It was something she was used to.”
Sims concurred with Fox that Morse’s conviction under Penal Code
section 288, subdivision (a) for the offense on Jane Doe met the definition of a
“sexually violent offense” under section 6600, subdivision (b). Sims also
concurred with Fox that Morse has a diagnosed mental disorder affecting his
emotional or volitional capacity that predisposes him to the commission of

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criminal sexual acts. Similar to Fox’s evaluation, Sims reviewed Morse’s
background, educational, employment, relationship, and sexual history.
In the interview, Morse told Sims that both his parents were deceased;
that he had three brothers; that he was physically and emotionally abused by
his step-father from age 11 to 13; that he joined the Army when he was 18
years old but left after one year because his mother had health problems;
that while in the Army he was sexually abused by two soldiers; and that also
while in the military he was in a coma for 28 days after being “hit in the
chest by a cannon shell.”
After discussing his relationship history, in which Morse claimed he
had five children living in Arizona and one in Ohio, all living with women
other than the two he had previously been married to, he talked about his
sexual history. When asked how often he thinks about children in a sexual
way, Morse initially responded, “[O]nce in a blue moon. I don’t know,” then
contradicted himself and said, “No.” Morse also denied having any other type
of “sexual problems” or “sexual deviancy.”
Morse also discussed his alcohol and drug use during his interview with
Sims. When asked if he had any problems with alcohol or drugs, Morse
stated, “Currently, no. If I get out, I’ll have to join a treatment program
because I still have ‘stinking thinking.’ I can drink a 12-pack or smoke
marijuana—it’s legal, but I want to be more functional.”
Sims also referenced the 1995 incident in Florida in which Morse was
convicted of kidnapping. Sims wrote: “According to the police report, the
defendant contacted a nine-year-old girl walking on the street (he reports he
thought the girl victim was a boy) and coerced her to stay with him when she
was to return home. When contacted by police, he lied and stated that ‘he’
was with him (the defendant). The child confirmed the lie. When the police

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searched for them later, the defendant forced the child into a dumpster to
avoid contact. They were found and the child was returned home the same
day of the abduction.”
Sims also discussed the qualifying crime. Sims noted after deputies
contacted Morse on January 25, 2010, they searched his RV and found
“[s]everal alarming items” that were “confiscated,” as summarized ante in
connection with Fox’s evaluation.
Regarding the incident in the Imperial County Jail when authorities
placed an undercover agent in Morse’s jail cell, discussed ante in Fox’s
evaluation, Sims further noted the probation report described the following
interview after Morse’s arrest with respect to his purchase of child
pornography from the agent: “[T]he defendant said that while in jail, he had
met with [an individual allegedly named] Don Ramon, a man interested in
child pornography and child sex. He said he wanted to entrap Don Ramon
and thus posed as a pedophile. Since he wanted Don Ramon arrested, he
purchased child pornography from him for $50. He further said he had led
Don Ramon to believe that he would travel to Mexico in order to witness
more of Ramon’s criminal acts. In reference to the journals in his RV, he said
he knew a few child molesters in Ocotillo and was planning to infiltrate by
pretending to be one of them. The defendant denied having sex or sexual
desires towards children. Agents made inquiries as to his initial arrest [on
the qualifying crime]. The defendant said he was hiding from a biker in the
child’s room and [he] witnessed a 16-year-old attempt to molest a child. He
said the child’s mother was asleep, leaving the child unprotected in her
bedroom.”
Sims asked Morse about the incident involving “Don Ramon.” Morse
responded, “An undercover cop tried to sell me child porn. I told him, ‘I don’t

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know you. I don’t know what the DVDs are about, but I could use a ride to
Ocotillo.’ All they were trying to do was hook me on a case.”
Morse during the forensic interview also made a “vague reference to
another sex offense against a separate victim.” Morse told Sims, “There is
one they didn’t indicate. It was nothing to do except me being drunk. . . . It
was a friend I was babysitting. Her mom would get drunk. It was in
Ocotillo, California.”
Sims, as did Fox, also reviewed Morse’s rule violation reports during
Morse’s incarceration on the qualifying offense. Sims asked Morse about an
incident that occurred in February 2019, when Morse was arrested and taken
to the mental health delivery system building after walking naked across the
prison yard. Morse stated, “They wouldn’t listen.”
Sims reviewed Morse’s extensive psychiatric history dating back to
1981. Although Morse claimed to have left the Army due to his mother’s
health, Sims noted while Morse was serving in the military he had a nervous
breakdown and was discharged. Sims also noted that Morse in December
2002 was admitted to Patton State Hospital after being found incompetent to
stand trial. The Discharge Summary dated February 23, 2005 relied on by
Sims showed Morse previously had been diagnosed as schizophrenic. An
August 20, 2010 Patton State Discharge Summary noted Morse attempted to
“lure” one of his female peers into the mail bathroom, but was stopped by
staff. He also was observed holding hands with female peers and “appeared
to engage in many behaviors indicating he was looking for some erotic
satisfaction on the unit.”
Sims also included in his evaluation Mental Health Documentation
dated October 26, 2019. Sims noted these records showed Morse had
attempted suicide at least 10-plus times; and had experienced auditory

19
hallucinations, paranoia, disorganization, and mood swings. Sims also
reviewed and summarized health records of Morse from R.J. Donovan
Correctional Facility.
Sims asked Morse about his psychiatric history. Sims summarized
their conversation as follows: “Mr. Morse stated that he had been
hospitalized at Atascadero State Hospital ‘a number of times.’ He stated, ‘I’m
not schizoaffective. I think I’m schizophrenic. I don’t have manic episodes.’
He stated that he has auditory hallucinations ‘at times.’ He denied having
paranoid thoughts. He stated that he currently takes lithium and valproic
acid, but ‘I don’t notice a difference.’ ” Morse during the interview admitted
several previous suicide attempts, “including breaking a razor off in his arm
in 2016, drinking gasoline on the yard in 2016 and taking someone else’s
medications in a suicide attempt, also in 2016.”
When asked to access his risk for sexual re-offense, Morse told Sims
“zero.” When asked why this was case, Morse replied, “ ‘because I’m going to
get alcohol treatment. After 12 years of reflection, there’s no way that I
would do the same thing.’ ” Morse then denied needing any treatment for
“sexual offense behavior.”
Based on the foregoing, Sims diagnosed Morse using the DSM-5 as
follows: “302.2 Pedophilic Disorder, Sexually Attracted to Females, Non-
exclusive type”; “295.70 Schizoaffective Disorder, Depressive Type”; “303.90
Alcohol Use Disorder, Severe, in a controlled environment”; and “301.7
Antisocial Personality Disorder.”
Sims used the same criteria from the DSM-5 used by Fox regarding the
diagnosis of Pedophilic Disorder. Sims concluded Morse met the criteria,
explaining: “Mr. Morse has been reported to view child pornography
repeatedly, to engage in sexual activity with a 6-year-old and to make

20
comments regarding his sexual interest in children, such as ‘My daughter
sucked my dick when she was like eight years old,’ and ‘I will protect fucking
people that are like me. All my fucking life I knew I wasn’t the only one, the
only so-called fucking molester or the only fucking pervert.’ ”
Sims found his diagnosis of Schizoaffective Disorder was warranted
because Morse’s “[p]ast symptoms have included auditory and visual
hallucinations, bizarre delusions, paranoia, grandiosity, extensive mood
swings with depression and mania, aggressive and assaultive behavior and
extremely disorganized thinking.” Sims also found support for this diagnosis
because Morse previously had been diagnosed with schizophrenia, as he
admitted during the interview, and because of his history of at least 10
suicide attempts.
Sims then reviewed the factors from the DSM-5 and Morse’s history to
diagnose him with Alcohol Use Disorder. Sims also used the criteria from the
DSM-5 to explain his diagnosis of Antisocial Personality Disorder. Sims
explained: “Mr. Morse’s failure to conform to social norms with respect to
lawful behaviors as indicated by repeatedly performing acts that are grounds
for arrest . . . indicated in hi[s] approximately 31 arrests and approximately
20 convictions. His deceitfulness is indicated in his false imprisonment
conviction, in his reporting the death of his mother on numerous occasions
and in his report that he was posing as an FBI agent to entrap ‘Don Ramon.’
His impulsivity and failure to plan ahead is indicated in his alcohol abuse
and parole and probation violations. His irritability and aggressiveness and
reckless disregard for the safety of others was indicated in his arrests and
convictions for Battery on Person, Assault with a Deadly Weapon, Attempted
Murder, Child Cruelty and Lewd Act Upon Child. His consistent
irresponsibility is indicated in his sporadic work history and failure to

21
support five children. His lack of remorse was clearly evident in the current
interview.”
Sims also concluded Morse has a mental disorder affecting his
volitional and emotional control that predisposes him to the commission of
criminal sexual acts. Sims based his conclusion on Morse’s diagnoses of
Pedophilic Disorder, Schizoaffective Disorder, Alcohol Use Disorder, and
Antisocial Disorder which, when combined, produce such a condition. Sims
found that this condition created a “volitional impairment” in light of the
repetitive nature of Morse’s sexual offenses, “despite the potential of being
caught and sanctioned”; and that Morse repeatedly engaged in such sexual
acts “despite the victims’ discomfort/distress,” evidencing the condition
affected his emotional capacity. Sims thus opined Morse met the definition of
“diagnosed mental disorder” under section 6600, subdivision (c).
Sims also opined that absent treatment or custody, Morse was likely to
engage in sexually violent criminal behavior as a result of his diagnosed
mental disorder. Sims found that Morse’s scores based on the Static-99 and
Static-2002 placed him in the average risk category for being charged or
convicted of another sexual offense. Sims nonetheless found these scores did
not include psychological risk factors, which, when considered, supported his
finding Morse in the future was likely to engage in sexually violent criminal
behavior.
Focusing on the factors of the structured risk assessment—forensic
version, Sims found the factor for sexual preference for children applied to
Morse, as Jane Doe was under 14 years of age, and Morse in the past has
“expressed an interest in sexual activity with children in his statement [to]
the undercover agent and his purchasing the alleged child pornography at
that time.” Other factors found present, or partially present by Sims

22
included Morse’s sexual preoccupation beyond that considered “normal” for
an adult; his emotional congruence with children; his callousness and lack of
empathic connection with others; his grievance thinking based on poorly
managed anger and a “persistent pattern of verbal aggression, angry
outbursts, threatening and intimidating behavior”; his lifestyle impulsivity,
demonstrated by his “sensation-seeking and poor tolerance for boredom”; his
resistance to rules and supervision; and his dysfunctional coping.
Based on these factors, Sims opined that Morse’s score on the
structured risk assessment—forensic version, was 33, which “placed him at a
‘high’ level of psychological need.”
Sims also considered protective risk factors. He found the risk of
reoffense by Morse may be reduced as a result of Morse’s chronic pain.
However, Sims found other protective risk factors, such as completing a
comprehensive sex offender treatment program or having been in the
community without sexually reoffending, did not apply to Morse.
Sims also evaluated not only whether it was “likely” Morse would
sexually reoffend, but also whether such an offense would be “predatory” in
nature as defined in section 6600, subdivision (e). Sims opined that if Morse
does sexually reoffend, it will likely be predatory given his offense against
Jane Doe, who was merely a “casual acquaintance” with whom Morse had no
substantial relationship.
Based on all of the foregoing, and despite Morse’s Static-99R and
Static-2002R scores, Sims concluded Morse “represents a substantial danger,
that is, a serious and well-founded risk of committing a future violent sexual
offense. Therefore, . . he is likely to engage in sexually violent predatory
criminal behavior as a result of his diagnosed mental disorder without
appropriate treatment and custody.”

23
 SVP Petition, the Probable Cause Hearing, and the Writ Petition
As noted, the El Centro District Attorney filed a petition in February
2020 to commit Morse as an SVP. The petition was supported by the
evaluations of Fox and Sims, which were attached to the petition. In April
2020, the court held a probable cause hearing under section 6602. The
People did not call any witnesses and submitted on the evaluations of the two
doctors. Morse also did not call any witnesses.
Relying on Sanchez and People v. Superior Court (Couthren) (2019)
41 Cal.App.5th 1001 (Couthren), Morse objected to the evaluations on the
ground they presented facts based on case-specific hearsay. Therefore, Morse
argued the experts’ opinions lacked proper foundation and the petition should
be dismissed. The court sustained the objection but noted the objection was
“somewhat vague, because, of course, the statements are spread throughout
the report.”
After sustaining the objection, the court took judicial notice of Morse’s
conviction for a violation of Penal Code section 288, subdivision (a) and noted
that the crime involved a child under the age of 14, which qualifies the crime
as a violent sexual offense. As such, the court found Morse had committed a
qualifying offense as defined under section 6600, subdivision (b).
The court further noted:
“[E]ven with the objection being sustained, there’s
sufficient evidence in the file to support the opinion that
the qualifying crime was predatory in that even Mr. Morse
was stating to the interviewer—and that’s not hearsay at
that level—that the child was a neighbor kid and that, you
know, certain statements about the child’s mother and her
behavior and that sort of thing. So there’s probable cause.

“I’m not saying any further burden of proof than that. But
there’s probable cause to believe that it was predatory in

24
 nature. Mr. Morse acknowledged to the interviewer that he
did at least have schizophrenia.

“He doubted that he had schizoaffective disorder. But
that’s a mental disorder and, therefore, the interviewer or
the author of the report [i.e., Sims], which was submitted
[to the court] on April the 15th, had sufficient basis for the
opinion that he suffers from a mental disorder that makes
it likely that he will commit sexually violent acts in the
future, at least as a probable cause standard.”

On May 12, 2020, Morse filed a writ petition. The People on June 25
filed an informal response, and Morse on July 8 filed a reply to that response.
On July 14, this court ordered the People to show cause why the relief sought
in the petition should not be granted. The People responded by filing a
return on August 6, and Morse filed a traverse on September 8.
DISCUSSION
As noted, Morse contends the court impermissibly relied on hearsay,
including his interview statements to Sims and, despite sustaining his
objection under Sanchez, to other case-specific facts in the evaluations in
making its probable cause finding. Absent this inadmissible hearsay, he
contends there is insufficient evidence to support the probable cause finding,
and therefore, the petition must be dismissed.
When this case was first before us, there was a split in the Courts of
Appeal whether an evaluation based on case-specific facts from hearsay
sources is admissible at a section 6602 probable cause hearing to establish a
person may be an SVP. (Couthren, supra, 41 Cal.App.5th 1001
[inadmissible]; Bennett v. Superior Court (2019) 39 Cal.App.5th 862 (Bennett)
[same]; Walker v. Superior Court (2020) 51 Cal.App.5th 682 [admissible],
review granted September 9, 2020, S263588.) Our high court has now
weighed in and concluded that hearsay evidence regarding nonpredicate

25
criminal acts is inadmissible at a section 6602 probable cause hearing.
(Walker, supra, 12 Cal.5th at p. 185.) Therefore, we must now consider
Morse’s petition in light of the Supreme Court’s holding in Walker.
A. Statutory Overview
The SVPA “allows for the involuntary commitment of certain convicted
sex offenders, whose diagnosed mental disorders make them likely to
reoffend if released at the end of their prison terms.” (Cooley v. Superior
Court (2002) 29 Cal.4th 228, 235 (Cooley).) Before someone can be committed
under the SVPA, the state must prove: (1) the person has previously been
convicted of at least one qualifying “sexually violent offense” listed in
section 6600, subdivision (b) (§ 6600, subd. (a)(1)); (2) the person has “a
diagnosed mental disorder that makes the person a danger to the health and
safety of others” (ibid.); (3) the mental disorder makes it likely the person will
engage in future acts of sexually violent criminal behavior if released from
custody (ibid.); and (4) those acts will be predatory in nature (Cooley, at
p. 243).
Before the People may file a petition to commit a person as an SVP, the
Department of Corrections and Rehabilitation (CDCR) must first screen him
or her, generally at least six months before his or her scheduled release date.
(§ 6601, subd. (a)(1).) “If as a result of this screening it is determined that
the person is likely to be a sexually violent predator, the [CDCR] shall refer
the person to the [DSH] for a full evaluation of whether the person meets the
criteria in Section 6600.” (§ 6601, subd. (b).)
Once a person is referred to DSH, he or she is evaluated under a
standardized assessment protocol developed by DSH to determine whether he
or she may be an SVP. The “standardized assessment protocol shall require
assessment of diagnosable mental disorders, as well as various factors known

26
to be associated with the risk of reoffense among sex offenders. Risk factors
to be considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental disorder.”
(§ 6601, subd. (c).)
A person is initially evaluated by two mental health professionals
designated by the DSH. (§ 6601, subds. (c), (d).) If both evaluators concur
“that the person has a diagnosed mental disorder so that the person is likely
to engage in acts of sexual violence without appropriate treatment and
custody,” the DSH forwards a request for a petition for civil commitment
under section 6606 to the county in which the person was convicted of the
offense for which he or she is currently incarcerated. (§ 6601, subds. (d), (i).)
“Copies of the evaluation reports and any other supporting documents shall
be made available to the attorney . . . who may file a petition for
commitment.” (§ 6601, subd. (h)(1).) If the county’s designated counsel
concur with the recommendation of DSH, he or she “may file a petition for
commitment in the superior court.” (§ 6601, subd. (h)(1).)
“Upon filing of the petition and a request for review under this section,
a judge of the superior court shall review the petition and determine whether
the petition states or contains sufficient facts that, if true, would constitute
probable cause to believe that the individual named in the petition is likely to
engage in sexually violent predatory criminal behavior upon his or her
release. If the judge determines that the petition, on its face, supports a
finding of probable cause, the judge shall order that the person be detained in

27
a secure facility until a hearing can be completed pursuant to Section 6602.”

(§ 6601.5.)10
A person alleged to be an SVP is entitled to a probable cause hearing.
(§ 6602, subd. (a).) The probable cause hearing is somewhat “analogous to a
preliminary hearing in a criminal case; both serve to ‘ “ ‘weed out groundless
or unsupported charges . . . and to relieve the accused of the degradation and
expense of a . . . trial.’ ” ’ [Citation.]” (Cooley, supra, 29 Cal.4th at p. 247.)
At the probable cause hearing, the court “shall review the petition and
determine whether there is probable cause to believe that the individual
named in the petition is likely to engage in sexually violent predatory
criminal behavior upon his or her release.” (§ 6602, subd. (a).) At the
hearing, the individual is “entitled to assistance of counsel.” (Ibid.) “If the
judge determines there is not probable cause, he or she shall dismiss the
petition and any person subject to parole shall report to parole. If the judge
determines that there is probable cause, the judge shall order that the person
remain in custody in a secure facility until a trial is completed . . . .” (Ibid.)
A trial is required “to determine whether the person is, by reason of a
diagnosed mental disorder, a danger to the health and safety of others in that
the person is likely to engage in acts of sexual violence upon his or her
release from the jurisdiction of the [CDCR] or other secure facility.” (§ 6602,
subd. (a).) A person alleged to be a sexually violent predator is “entitled to a
trial by jury, to the assistance of counsel, to the right to retain experts or

10 “An order issued by a judge pursuant to Section 6601.5, finding that the
petition, on its face, supports a finding of probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release, shall toll that person’s
parole pursuant to paragraph (4) of subdivision (a) of Section 3000 of the
Penal Code, if that individual is determined to be a sexually violent
predator.” (§ 6601, subd. (j).)

28
professional persons to perform an examination on the person’s behalf, and to
have access to all relevant medical and psychological records and reports.”
(§ 6603, subd. (a).) If neither the person deemed to be a sexually violent
predator nor the attorney petitioning for commitment demand a jury trial,
“the trial shall be before the court without a jury.” (Id., subd. (f).) “A
unanimous verdict shall be required in any trial.” (Id., subd. (g).)
“If the court or jury determines that the person is a sexually violent
predator, the person shall be committed for an indeterminate term to the
custody of the [DSH] for appropriate treatment and confinement in a secure
facility.” (§ 6604.) Once a person has been found to be an SVP, the DSH
must conduct annual mental health examinations, reporting to the court
whether the person continues to meet the definition of an SVP. (§ 6604.9,
subd. (a).) The report to the court must recommend whether unconditional
discharge or conditional release to a less restrictive alternative (that would
adequately protect the community) is in the person’s best interest. (Id.,
subd. (b).) If the DSH does not recommend either unconditional discharge or
conditional release, a person may still petition for conditional release without
the recommendation or concurrence of the DSH. (§ 6608, subd. (a).)
B. Walker
In Walker, supra, 12 Cal.5th 177, the California Supreme Court
addressed what kind of evidence a trial court may consider in making its
initial SVPA probable cause determination, specifically focusing on whether
the trial court “can admit certain hearsay evidence in psychological
evaluation reports in finding probable cause to commit individuals under the
SVPA.” (Id. at p. 185.) The court answered that question in the negative,
noting that section 6602, subdivision (a) does not create an exception that

29
allows hearsay regarding nonpredicate offenses to be introduced via
evaluation reports. (Walker, at p. 185.)
The district attorney filed a petition to commit Walker as a sexually
violent predator under the SVPA. The petition was supported by two reports
written by psychologists Thomas MacSpeiden and Roger Karlsson. (Walker,
supra, 12 Cal.5th at p. 186.) Both concluded that Walker satisfied the
statutory criteria to be an SVP. (Ibid.)
In the reports, the psychologists discussed Walker’s 1990 conviction for
rape, a predicate sexually violent offense under the SVPA. (Walker, supra, 12
Cal.5th at p. 186; see § 6600, subd. (b).) They also discussed the alleged facts
of two charged sex crimes that did not result in convictions qualifying as
sexually violent offenses. In the first offense, Walker was charged in 1989
with raping a 16-year old victim. The trial court dismissed the rape charge
before trial, but Walker was convicted of unwanted sexual intercourse with a
minor. For the second offense, Walker was charged with rape in 2005. A jury
acquitted Walker of this charge (apparently, the victim had lied), but it
convicted him of pandering. (Walker, at p. 186.)
The psychologists obtained the details underlying the 1989 rape
allegation from the 1991 probation report, and they obtained the details
underlying the 2005 rape allegation from a police inspector’s affidavit in
support of an arrest warrant. MacSpeiden quoted the documents’ description
of events in his report. Moreover, the subject documents on which
MacSpeiden relied summarized and quoted the victims’ accounts of Walker’s
conduct and statements before, during, and after the alleged rapes. For his
report, Karlsson quoted the police affidavit and summarized the probation
report’s description of events. (Walker, supra, 12 Cal.5th at p. 187.)

30
 At the probable cause hearing, the prosecution moved to admit the
psychologists’ reports into evidence. Walker, however, objected, arguing the
reports contained inadmissible hearsay regarding the 1989 and 2005 rape
allegations. Per his objection, Walker asked the court to exclude the reports
in the entirety or, in the alternative, to strike the portions of the report
containing inadmissible hearsay. The court overruled the objection and
admitted the reports into evidence. (Walker, supra, 12 Cal.5th at p. 188.)
Both MacSpeiden and Karlsson were cross-examined by Walker’s
attorney at the probable cause hearing. MacSpeiden admitted the 1989 and
2005 rape allegations “constituted key rationales for his evaluation.”
MacSpeiden specifically noted that “the two allegations and Walker’s 1990
rape conviction all had ‘essentially the same’ ‘modus operandi.’ ” (Walker,
supra, 12 Cal.5th at p. 188.) As such, MacSpeiden explained that he believed
it was important to describe the 1989 and 2005 rape allegations in his report,
and he stated that he believed the allegations to be true and the documents
describing the allegations to be reliable. (Ibid.) However, MacSpeiden
contended that he would have still arrived at the same evaluation of Walker
without the rape allegations because Walker had 11 sex offense charges
between 1988 and 2007. That said, MacSpeiden did not include any of the
factual details of those charges in his report except for the two rape
allegations. (Ibid.)
During Karlsson’s cross-examination, he “testified that his evaluation
was informed by the 1989 and 2005 rape allegations. He explained that he
relied on the probation report and police affidavit relaying these allegations
because the documents were from sworn officers, and he therefore had no
reason to believe the records had untrue information.” (Walker, supra, 12
Cal.5th at p. 188.) Karlson also admitted that had he not consider the 1989

31
or 2005 rape allegation, his overall opinion about Walker could have been
different. (Ibid.)
In addition to cross-examining the two psychologists, Walker called
four witnesses: (1) the 2005 victim’s ex-boyfriend, who testified that the
victim admitted she falsely accused Walker of rape; (2) one of the initial
psychologists who evaluated Walker and testified that he did not qualify as
an SVP; (3) the police officer who investigated the 2005 rape allegation; and
(4) Walker. (Walker, supra, 12 Cal.5th at pp. 188-189.) Based on the
evidence produced at the hearing, the trial court determined that probable
cause existed to commit Walker as an SVP. (Id. at p. 189.)
Thereafter, Walker unsuccessfully sought to dismiss the petition, first,
arguing that the psychologists’ reports contained inadmissible hearsay in
violation of Sanchez, supra, 63 Cal.4th 665, and second, asking the court to
reconsider the denial of his motion to dismiss under Bennett, supra, 39
Cal.App.5th 862. Walker then filed a petition for a writ of mandate in the
Court of Appeal. After issuing an order to show cause, the appellate court
denied the petition, disagreeing with Bennett and Couthren. (See Walker v.
Superior Court, supra, 51 Cal.App.5th at pp. 694, 701-702, review granted.)
Our high court granted review to resolve the split. (Walker, supra, 12 Cal.5th
at p. 189.)
Yet, in granting review, the Supreme Court noted the limited scope of
the question before it: “the admissibility of particular hearsay content in the
reports.” (Walker, supra, 12 Cal.5th at p. 193.) Therefore, the court focused
on “whether hearsay about nonpredicate offenses—otherwise inadmissible
hearsay—may be admitted through expert reports under section 6602.”
(Ibid.)

32
 In determining the hearsay evidence was inadmissible at an SVPA
probable cause hearing, the court noted, “Nothing in the language of the
SVPA indicates the Legislature created an explicit hearsay exception to allow
hearsay in evaluation reports, regarding an SVP candidate’s prior
nonqualifying offenses, to be admitted at a probable cause hearing.” (Walker,
supra, 12 Cal.5th at p. 195.) Further, the court observed that the SVPA does
not require consideration of the evaluation reports at the preliminary hearing
stage, but instead, merely requires that the reports be prepared as a
predicate to filing a petition under the SVPA. (Id. at p. 196.) And the court
pointed out that the SVPA does not dictate how or even if the prosecution
should present the reports to the court. Alternatively stated, under the
SVPA, the prosecution can determine the means of establishing the facts
underlying the petition, which does not necessarily have to include offering
the reports into evidence. (Ibid.)
Our high court carefully reviewed and rejected the arguments
advanced by the People to support the admissibility of the hearsay
statements in the reports. (See Walker, supra, 12 Cal.5th at pp. 200-206.)
We need not repeat that discussion in depth here because we must follow the
holding of Walker. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) That said, we note the court was clear that a trial court,
under the SVPA, cannot allow the admission of hearsay in expert reports
regarding facts associated with offenses that did not lead to the predicate
conviction. (Walker, at pp. 201, 206.)
The Supreme Court then determined that the admission of the hearsay
statements from the psychologists’ reports represented material error under
the standard set forth in Reilly v. Superior Court (2013) 57 Cal.4th 641, 652-

33
656 (Reilly).)11 (Walker, supra, 12 Cal.5th at p. 206.) The court explained
that some of the properly admitted evidence supported the existence of
probable cause, but “some of the properly admitted evidence cut against the
existence of probable cause.” (Id. at p. 207.) The court further observed:
“Nothing in the record tells us exactly how the trial court settled on its
probable cause determination by weighing the competing evidence. But the
nature and role of the inadmissible hearsay make it likely that this evidence
prejudicially affected the trial court’s determination.” (Ibid.) To this end, the
court noted “the lurid hearsay details regarding the 1989 and 2005 rape
allegations depicted Walker as an individual with a strong propensity and
modus operandi for violent sex offenses.” (Ibid.) As such, the court could not
“discount the possibility that the nature of rape allegation evidence
impermissibly factored into the trial court’s probable cause determination.”
(Id. at pp. 207-208.) Moreover, the court found that the inadmissible hearsay
that the trial court admitted “critically supported the evaluation reports’
conclusions.” (Id. at p. 208.)
The court observed that both MacSpeiden and Karlsson relied on and
emphasized the inadmissible hearsay in their respective reports, specifically
noting that Karlsson admitted during cross-examination that without
consideration of the 1989 and 2005 rape allegations, his opinion might have
been different. (Walker, supra, 12 Cal.5th at p. 209.) Accordingly, the court
determined that “without the inadmissible hearsay, the trial court would
have lacked critical evidence to establish the diagnosis and reoffense

11 Reilly involved the issue of whether a sexually violent predator petition
must be dismissed if the evaluations supporting the petition were conducted
under an invalid assessment protocol. Our high court concluded the
defendant, as the party seeking mandate, bore the burden of showing the
error “materially affect[ed] the outcome of his probable cause hearing.”
(Reilly, at p. 656.)

34
elements of the SVP determination. [Citations.] For that reason, and
because of the inflammatory nature of the hearsay evidence, its admission
prejudiced Walker.” (Ibid., footnote omitted.)
C. Application of Walker to the Instant Matter
Per the direction of our high court, we apply Walker, supra, 12
Cal.5th 177 to the instant matter. As we explain post, in doing so, we
conclude there was insufficient admissible evidence before the trial court on
which to base its probable cause finding.
As a threshold matter, we observe several differences between the
matter before us and Walker at the trial court level. In Walker, the trial
court did not exclude any of the hearsay contained in the subject experts’
reports. (Walker, supra, 12 Cal.5th at p. 188.) In contrast, here, the trial
court sustained Morse’s objection to the case specific hearsay contained in
Fox’s and Sims’s reports. At the probable cause hearing in Walker, the two
psychologists were cross-examined about the content of their reports,
including the specific nonpredicate acts they considered and relied upon in
reaching their conclusions. In addition, Walker offered his own witnesses
who provided evidence against the prosecution’s petition that probable cause
existed that Walker was an SVP under the Act. (Id. at pp. 188-189.) In the
instant matter, the prosecution relied entirely upon the two reports. Neither
Fox nor Sims testified at the hearing. Accordingly, they were not subject to
cross-examination. Moreover, Morse did not offer any affirmative evidence to
challenge the SVPA petition. As such, the record in Walker regarding the
probable cause hearing was much more developed than the one before us
here.
Further, Walker’s challenge in Walker, supra, 12 Cal.5th 177 was
narrower than Morse’s challenge here. There, Walker did not challenge the

35
admissibility of the reports or the admissibility of all the hearsay contained
in those reports. Instead, Walker focused on the admissibility of hearsay
about nonpredicate offenses under section 6602 at a probable cause hearing.
(Walker, at p. 193.) In contrast, here, the scope of Morse’s argument is much
broader than Walker’s. For example, Morse argues the court could not have
admitted or relied upon statements Morse made to Sims (that are contained
in Sims’s report) as well as Sims’s opinion that Morse had a disorder that
made him likely to reoffend. Indeed, Morse argues that the only admissible
evidence before the court related to his prior conviction of a qualifying offense
under the SVPA. In this sense, Morse, unlike Walker, is challenging the
admission of all hearsay contained in the experts’ reports.
Walker, supra, 12 Cal.5th 177 does not directly address the arguments
Morse offers here. Nevertheless, our high court makes clear that a trial court
cannot consider hearsay evidence regarding nonpredicate offense. (Id. at
p. 194.) Moreover, the court’s reasoning in Walker strongly suggests that the
rules of evidence apply at SVPA probable cause hearings and otherwise
inadmissible hearsay does not become admissible under the SVPA simply
because it is being offered at a probable cause hearing. (See id. at pp. 203-
204 [“Without legislative guidance to the contrary, the same evidentiary
rules, i.e., the Evidence Code, govern the probable cause hearing and trial”].)
Thus, we acknowledge the approach of our previous opinion in this matter
was incorrect. The SVPA does not allow the trial court to consider all the
hearsay contained within an expert report. Instead, hearsay in an expert
report must be admissible under an exception before a trial court may
consider it.
Although Walker might not be on all fours with the instant matter,
Couthren, supra, 41 Cal.App.5th 1001 is closer to the mark. In Couthren, like

36
here, at the SVPA probable cause hearing, the prosecution relied entirely on

reports prepared by psychologists examining the defendant.12 (Id. at
p. 1006.) Defense counsel filed a motion in limine to exclude the expert
reports on hearsay grounds under Sanchez, supra, 63 Cal.4th 665. No live
testimony was presented; however, the prosecution offered certain additional
conviction documentation regarding the defendant’s prior offenses.
(Couthren, at p. 1007.)
The trial court found admissible the portions of the expert reports
discussing the details of the defendant’s qualifying convictions as well as the
additional conviction documents. Consequently, the court determined the
prosecution sufficiently established the first element of proving the defendant
was an SVP: the defendant had committed a qualifying sexually violent
offense against at least one victim. Nevertheless, the court concluded the
remaining elements necessary to prove the defendant was an SVP could not
be established solely on the basis of hearsay written evaluations once defense
counsel objected to the admissibility of these reports. (Couthren, supra, 41
Cal.App.5th at p. 1007.) The court therefore dismissed the petition. (Ibid.)
The prosecution then filed a petition for extraordinary relief. The
Court of Appeal issued a temporary stay as well as an order to show cause.
(Couthren, supra, 41 Cal.App.5th at p. 1007.) The appellate court ultimately
agreed with the superior court, concluding that the SVPA did not contain any
hearsay exception that allowed an expert’s report to be admitted at a
section 6602 probable cause hearing it its entirety. (Couthren, at pp. 1014-

12 The prosecution submitted reports from three psychologists who
concurred that the defendant should be considered an SVP. However, a
fourth report was provided to the court “for its information” in which a fourth
psychologist disagreed with the other three psychologists. (Couthren, at
p. 1006.)

37
1015.) As such, the appellate court concluded the superior court did not err
in finding that there was insufficient admissible evidence before it to support
a finding of probable cause. (Id. at p. 1022.)
Here, like the prosecution in Couthren, the prosecution did not offer
any live testimony and relied entirely on documentary evidence. And, similar
to the trial court in Couthren, the trial court in the instant matter excluded
case specific hearsay contained in the reports. Further, had the court here
found the prosecution, by relying solely on the psychologists’ report, did not
show probable cause then its conclusion would fall squarely under the
holding of Couthren. However, the court did not do so. It sustained Morse’s
objections “as to the case-specific statements” but concluded sufficient
admissible evidence existed to support a finding of probable cause. Thus, the
issue before us is whether sufficient evidence exists, excluding the case
specific hearsay, to support the trial court’s finding of probable cause.
“[A] determination of probable cause by a superior court judge under
the SVPA entails a decision whether a reasonable person could entertain a
strong suspicion that the offender is an SVP.” (Cooley, supra, 29 Cal.4th at
p. 252.) As we discuss ante, an SVP is defined in section 6600,
subdivision (a)(1), as “a person who has been convicted of a sexually violent
offense against one or more victims and who has a diagnosed mental disorder
that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.” In
addition, our high court held that the predatory nature of criminal acts is an
additional element required to be proven at trial in order to commit an SVP.
(People v. Hurtado (2002) 28 Cal.4th 1179, 1186.) Thus, a court must find all
these elements present to conclude probable cause exists under section 6602.
(See Cooley, at p. 250.)

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 In reviewing the trial court’s finding of probable cause in this matter,
we independently examine the court’s resolution of mixed questions of law
and fact and make sure the court’s factual findings are supported by
substantial evidence. (Cooley, supra, 29 Cal.4th at p. 257.)
Here, the only evidence before the trial court was contained in the two
psychologist reports. Nevertheless, the court sustained Morse’s objection to
the case specific hearsay contained in those reports. Yet, in doing so, the
court noted that Morse’s objection was “somewhat vague” because the
inadmissible hearsay statements were “spread throughout the report[s].” We
agree with the trial court that the subject reports contain inadmissible case
specific hearsay. Indeed, as we have described the content of the reports
ante, they are replete with copious amounts of case specific hearsay on which
the experts clearly relied and found reliable. Moreover, the reports
themselves are hearsay. (See Walker, supra, 12 Cal.5th at p. 192
[“Documents like reports and records are generally hearsay if they are offered
for their truth, and indeed, may contain further instances of hearsay, each of
which is inadmissible unless also covered by an exception”]; Couthren, supra,
41 Cal.App.5th at p. 1010 [“We conclude that the rules of evidence apply in
an SVP probable cause proceeding and therefore the admissibility of
documentary evidence such as expert evaluations will be governed by the
hearsay rule and any applicable exceptions”].) Thus, in finding probable
cause based predominately on the reports, our task here is to determine
whether the court’s finding of probable cause is supported by substantial
evidence consisting only of admissible evidence contained in the reports.
Below, the trial court took judicial notice of Morse’s previous conviction
for a violation of section 288, subdivision (a), which qualifies as a sexually
violent offense. The court also noted that, “even with the objection being

39
sustained,” “there’s sufficient evidence in the file to support the opinion that
the qualifying crime was predatory[.]” The evidence the court noted was
Morse’s statements to Sims “that the child was a neighbor kid and . . . certain
statements about the child’s mother and her behavior and that sort of thing.”
Moreover, the court determined that Morse’s statements to Sims, which the
court read in Sims’s report, were “not hearsay at that level.” Finally, the
court found that Morse “acknowledged to” Sims that he had schizophrenia.
However, the court noted there was some doubt regarding whether Morse
had schizoaffective disorder. Nevertheless, the court reasoned: “But that’s a
mental disorder and, therefore, the interviewer or the author of the
report . . . had sufficient basis for the opinion that he suffers from a mental
disorder that makes it likely he will commit sexually violent acts in the
future[.]”
Morse does not challenge the court’s finding that he committed a
qualifying crime. That said, he argues there was no other admissible
evidence before the court to satisfy the remaining three elements required to
find he fit the definition of an SVP for purposes of the probable cause
hearing. To this end, he argues the court considered what he said to Sims,
but Sims did not testify at trial. Therefore, the court considered what Sims’s
report repeated what Morse had said, which is inadmissible hearsay. We
agree, and the court sustained Morse’s objection to the case specific hearsay
contained in the report. Thus, the court could not consider Sims’s report’s
recounting of Morse’s statements unless that recounting was admissible.
The People imply that Morse’s statements were admissible under
either section 6600, subdivision (a)(3) or the party admission exception under
Evidence Code section 1220. We reject both these contentions. The
California Supreme Court made clear that the hearsay exception contained in

40
section 6600, subdivision (a)(3) only “permits the prosecution to show the
existence of and details underlying the first element of the SVP
determination—a predicate sex-offense conviction—‘by documentary
evidence, including but not limited to, preliminary hearing transcripts, trial
transcripts, probation and sentencing reports, and evaluations[.]’ ” (Walker,
supra, 12 Cal.5th at p. 198.) Accordingly, the court has “interpreted the
provision as allowing the prosecution to prove facts of a defendant’s prior
qualifying convictions not just with certain documents (like evaluations) but
also with multiple-level-hearsay statements contained therein (like police
and probation reports, and victim statements they include).” (Ibid.) Thus,
section 6600, subdivision (a)(3) does not provide an avenue to admit
otherwise inadmissible hearsay at an SVPA probable cause hearing to prove
anything beyond a qualifying offense.
In addition, the party admission hearsay exception does not make
Morse’s statements repeated in Sims’s report admissible. Hearsay consists of
an out-of-court statement made by someone other than a testifying witness
offered to prove the truth of the matter stated and is generally inadmissible
unless it falls under an exception. (Evid. Code, § 1200, subds. (a), (b); see
Sanchez, supra, 63 Cal.4th at p. 674.) Morse’s statements to Sims are
hearsay but could be admitted under the party admission exception. (See
Evid. Code, § 1220.) Nonetheless, here, the issue is not just the admission of
Morse’s statements to Sims. Sims did not testify at trial about what Morse
told him. Instead, Sims’s report contains Morse’s statements to Sims. The
report’s mention of Morse’s out of court statements are being offered for the
truth of the matter asserted and, as such, are hearsay. Multiple hearsay, or
hearsay-within-hearsay, is admissible only when each level of hearsay “meets
the requirements of an exception to the hearsay rule.” (Evid. Code, § 1201;

41
see Sanchez, at p. 675.) Thus, for the portion of the report containing Morse’s
statements to Sims to be admissible, a hearsay exception must not only apply
to Morse’s actual statements but the report containing those statements.
Because the People submitted their return before Walker, supra, 12
Cal.5th 177 was decided, they argue that section 6602 creates a hearsay
exception that allows a trial court to consider all the hearsay contained in an
expert’s report for purpose of determining whether probable cause exists. As
our high court explained in Walker, no such exception exists in the SVPA.
Consequently, we agree with Morse that the statements the trial court
identified as supporting its finding that probable cause exists are hearsay
that are not subject to any exception. As such, the court could not rely on
that evidence to support its finding of probable cause. Although there may be
admissible evidence in the two expert reports that support the trial court’s
finding of probable cause, neither party has identified it here. Morse argues
that the reports are inadmissible hearsay under Couthren, supra, 41
Cal.5th 1001, and thus, there was no admissible evidence before the court
except for evidence establishing he committed a qualifying crime under the
SVPA. The People do not point to any other admissible evidence. Instead,
they rely on the same statements from Morse on which the trial court relied
and which we determined were inadmissible.
Based upon the limited record before us, we believe the most prudent
course is to grant the requested relief and remand this matter to the superior
court with instructions that it conduct a probable cause hearing that complies
with the dictates of Walker, supra, 12 Cal.5th 177 and Couthren, supra, 41
Cal.App.5th 1001. Such an approach is especially appropriate where the only
evidence presented at the probable cause hearing consisted of two expert
reports that contain abundant inadmissible hearsay, which is inflammatory,

42
and there is no indication in the record regarding on what admissible
evidence the trial court relied to find probable cause. (See Walker, supra, 12
Cal.5th at p. 209.)
DISPOSTION
The petition is granted. The matter is remanded to the superior court
with instructions to conduct a new probable cause hearing consistent with
this opinion.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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